Canadian Employment Law Today

December 11, 2013 Information to protect residents, not discriminate Continued from page 3 the information disclosed — including forms, cost and timing — is not consistent across the various police services. Each jurisdiction has its own protocols, so it is important for home administrators to understand and comply with the different regimes. The key common denominator is that the individual about whom the screen is requested provide consent to release the information. Declaration of new and existing staff and volunteers In addition to the screening described above, every staff member or volunteer who applies to work — or who already works — in a retirement home must provide the home with a signed declaration disclosing the following information for the period since the individual's last police background check, or if no background check has been conducted, since Jan. 1, 2014: •Every offence with which the individual has been charged under the Criminal Code, the Controlled Drugs and Substances Act, or the Food and Drugs Act and the outcome of the charge. •Every order of a judge or justice of the peace made against the person in respect of an offence under the three acts identified above, including a peace bond, probation order, prohibition order or warrant. •Every restraining order made against the individual under the Family Law Act or Children's Law Reform Act. The staff member or volunteer must provide this declaration to the retirement home "promptly" each time he has been made aware a charge or order has been laid or made, or the individual has been convicted or a charge otherwise disposed of. To whom so the requirements apply? Every staff member, volunteer and agency worker is subject to the new requirements unless expressly exempted under the RHA or its regulations. This also includes an individual working in a retirement home under an agreement with a staffing agency, if that individual provides direct care to residents. In those cases, while the staffing agency may take steps to ensure its staff are screened in compliance with the legislation, the ultimate responsibility to ensure compliance remains with the retirement home. Accordingly, a home will want to consider reviewing and amending its agreements with staffing agencies to include terms that 8 reflect the agency's ongoing compliance with the RHA's screening requirements, to fully and promptly disclose to the retirement home all information gathered in advance of any placement, and to allow for periodic audits of the agency's screening protocols. The benefits and extent of such compliance measures should also be carefully balanced with the risk that the home and agency may be found, for example, to be "co-employers" in the context of a union application for certification or other employment-related legal claims. It is not discriminatory to refuse to hire an individual on the basis of a criminal conviction, unless the individual has been granted a pardon. However, a refusal to hire an employee based on a pardoned criminal conviction may be justified if a clean record is a bona fide qualification for the job. Exceptions The new screening requirements do not apply to three categories of staff and volunteers. Namely, an individual who: "• occasionally works in a retirement home performing maintenance and/or repair services if the individual: -provides maintenance or repair services under a contract with the home; - is monitored and supervised by the home in accordance with written policies that the home has prepared to monitor and supervise persons who provide occasional maintenance or repair services; and - does not provide direct care to residents; • is a member of the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, or the Ontario College of Pharmacists; or • is under 18 years of age." Human rights considerations Once a retirement home has received the required information, how that information can be used to make employment decisions is not as straightforward. On the one hand, retirement homes will want to carefully assess the information with a view to protecting the home's community, including residents, staff and visitors. On the other hand, human rights legislation makes it illegal for an employer to make a decision in employ- ment on the basis of certain protected grounds. For example, it is illegal to refuse to hire an individual because of a disability — which may include mental illness — unless the disability cannot be accommodated by the employer to the point of undue hardship — a very high standard to meet. Accordingly, all information gathered in accordance with the screening provisions of the RHA must be considered and acted upon in accordance with prevailing human rights law. Failure to do so can expose a retirement home to a claim of discrimination the Human Rights Tribunal of Ontario or the civil courts. Consider the following two examples. •In Ontario, it is not discriminatory to refuse to hire or continue to employ an individual on the basis the individual has been charged with a criminal offence, regardless of whether the charge is related to the nature of the employment. It is also not discriminatory to refuse to hire or continue to employ an individual on the basis of a conviction under the Criminal Code, unless the individual has been granted a pardon. In other words, the general rule is that it is likely discriminatory to refuse to hire or continue to hire an individual on the basis of a conviction under the Criminal Code for which there has been a pardon. However, there are exceptions to this general rule. Refusal to hire an employee based on a pardoned criminal conviction may be justified where having a clean criminal record is a bona fide qualification for the job, and the essential functions of the job cannot be altered without creating undue hardship. These are rarely simple analyses and must be undertaken on a case-by-case basis considering the nature of the job, the individual at issue, and the operations of the retirement home as a whole. • Disability is a protected ground under human rights legislation. Mental health issues have been recognized by the Human Rights Tribunal and courts as a disability. Should a police background check reveal contact with the police under the Mental Health Act, and this information results in a decision by a retirement home to not hire or continue to employ an individual, this could result in an allegation the home discriminated against the individual on the basis of a disability. Once again, an individualized analysis must take place each and every time. Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 9

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